## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

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P A T R I C I A E L I Z A B E T H H A R K C O M , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E S E C O N D C O U R T O F A P P E A L S

H O O D C O U N T Y
J O H N S O N , J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h M E Y E R S , K E A S L E R , H E R V E Y , A L C A L Á , R IC H A R D S O N , a n d N E W E L L , J J . , j o i n e d . K E L L E R , P . J . , a n d Y E A R Y , J . , c o n c u r r e d . O P I N I O N Appellant Patricia Eliz abeth Har kcom was char g e d w it

h p o s s e s s io n o f a c o n tr o ll e d s u b stance , methamphetamine, in an amount of less than one g ram. After conviction, t h e co u rt of appea ls 1 dismiss ed her

appea l for wa

nt of jurisdiction, and appe llant petitioned this Court for discr etionary revie w. We reve rse. F a c t s

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On Dec ember 31, 2011, appellant was a passeng er in a car in which methamphetamine was discovere d duri ng a routine traff ic s top. Appellant was arr ested and char g ed with possession of a controlled substance, methamphetamine, of less than one g ram. On October 2, 2012, appellant was convicted of a state jail-felony and was sentenced t o t we n ty -four months’ imprisonment and a $2,250.00 fine. The trial court cer tified her rig ht to an appea l that same day

. On October 30, 2012,
t h e t we n t y -e ighth day afte r the sentenc e was imposed, appellant filed a pro se application for appointment of counsel, writing the word “APPEAL ” on the top of the document. This was the only do cu ment made available to appellant while incar cer ated, and she had not y et been appointed an attorney

. On October 31, 2012, twenty -nine day s afte r the sentenc e was imposed, the trial court
g rante d appellant’ s application for appointment of counsel and chang ed the title of the document to “Or der Appointing Counsel on Appea l” by adding the words “ON APPEAL ” in block letters to the orig inal title and crossing out the word “De ny ing” in the phrase “Or der Appointing/De ny ing Counsel.” I t is clea

r from this amende d document that the trial judge understood the appellant to be acting pro se and g iving notice of appea l. The trial court signe d and filed the judgme nt the same day

. Appellate counsel was notified of his appointment the nex t day , thirty day s afte r sentenc e was imposed. Appellate counsel filed a more formal notice of appea l on November 8, 2012, seven day s past the 30-da

y deadline to timely

file a notice of appe al. 2
T h e J u d g m e n t o f t h e C o u r t o f A p p e a l s T h e c o u r t o f a p p e a l s d i s m i s s e d t h e a p p e a l f o r w a n t o f j u r i s d i c t i o n d u e t o t h e l a c k o f

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a timely notice of appea l. Harkc om v. State , No. 02-12-00576- CR, 2014 WL 4923003, at *4 (Tex. App.—For

t Worth Oct. 2, 2014, pet. g rante d). I t stated that a timely notice of appea l was essential
to vest the court with jurisdiction. Id. The court of appea ls rea soned that appellant’ s application for appointment of counsel did not nece s sarily convey a desire to appea l and there fore did not g ive timely notice of appea l. Id

. As the rec ord was devoid of a timely notice of appea l or a timely motion for e x tension of time to file a notice of appe al, the court of appe als conc luded that it must di smiss the appe al for w ant of jurisdiction. Id

. The court of appea ls rec og nized that a notice of appea l is sufficie nt when it shows a defe ndant’s desire to appea l. Id. And it rec og nized that this Court has instructed the courts of
appea ls to liberally construe rules rela ted to the perf ection of an appea l. Id. (citing Few v. State , 230 S.W .3d 184, 190 (Tex. Crim. App. 2007)). Stil l, the court of appea ls conclude d that the handwr itten ref ere nce to a

n appea l on the order g ranting appellant’ s application is not deter minative and “does
not nece ssarily refl ec t t h e t rial court’s understanding of appellant’s prese nt intent to appea l.” Id

. Ex plaining further , the court appea ls stated, “[I ]t may , instead, ref lect the court’s acknow ledg ment that appellant would need counsel if she later decide d to appea l.” Id. We find this analy sis contra ry to our instruction to construe the r ules rela ted to the per fec tion of an appe al libera lly

. A p p l i c a t i o n A d ef en d an t ’s notice of appea l is timely filed if it is filed within 30 day s afte r the day t h e sentenc e is imposed or suspended in open court or, if the defe ndant has filed a timely motion for new trial, within 90 day s afte r the day the sentenc e is imposed. Notice must be g iven in writing and filed 3

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with the trial -c ourt cler

k. Notice is sufficie nt if it shows the party ’s desire to appea l from the 4 judgme nt or other a

ppeala ble orde r. 5 The Texas Rules of Appellate Procedur e wer e amende d in 2002 to preve nt trivial, repa rable mistakes or defe cts from divesting appellate courts of the jurisdiction to consider the merits of both
state and defe nse appea ls in criminal ca s es . F ew , 2 30 S.W .3d at 187. The Rules of Appellate Procedur e should be co n s t ru ed re as onably , y et liberally , so that the rig ht to appea l is not lost by imposing require ments not absolutely nece ssary to eff ect the purpose of a rule. Id. at 189 (citing Verburgt v. Dorne r , 959 S.W .2d 615, 617 (Tex. 1997)). A person’ s rig ht to appea l a civil or criminal judgme nt s h o u l d n o t depend upon traipsing throug h a m aze of technica lities. Id

. at 190. We do not require “mag ic words” or a separ ate instrument to constitute notice of ap p ea l

. Al l that is require d is that the notice be in writing , be submitt ed within thirty day s or ninety day s afte r sentenc ing, as appropr iate, and show the p ar t y ’s desire to appea l from the judgme nt or other appea lable order

. I n this instance, appellant used the materia ls available to her while incar cer ated. We know that, by adding the simple word “APPEAL ”
to the Orde r reque sting counsel, appellant was able to make clea r to the trial-cour

t judge that she was attempting to invoke the appella t e court’s jurisdiction beca use the judge further amende d the document by adding the words “ON APPEAL ” afte r the phrase “Or d er Appointing/De ny ing Counsel,” crossing out “De ny ing,” and appointing appellate counsel. The trial-cour t judge there by

rec og nized appellant’s intent to g ive a notice of appe al and r equest a ppellate c ounsel. Construing the Rules of Appellate Procedur e liberally leads us to conclude that appellant g ave sufficie nt notice

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of appe al to invoke the appe llate cour t’s jurisdiction. We reve rse the judgme nt of the court of appea ls and rema nd this case to that court for further
proce eding s consistent with this opi nion.

Deliver ed: Marc h 9, 2016 Publis h